Trigger warnings for excessive workloads not the answer

Responding to the prospect that lawyers can record up to 3,000 hours per year, Passmore said: “That is a massive amount of work on any basis. That is an amount of work that should send a trigger warning and that person needs to be spoken to and looked after as appropriate.”

“Those sort of hours are massive. I suspect I won’t be hugely popular for saying things like that but if we are to address this then these are the things that need to be looked at,” he said.

The comments followed the death, earlier this year, of a partner at Pinsent Masons, who was suffering from an “acute mental health crisis”, as determined by a coroner’s inquest.

In conversation with HR Leader's sister brand, Lawyers Weekly, Andrew Douglas and Desi Vlahos (both pictured), who appeared on The Lawyers Weekly Show a few months ago to discuss what’s not working in addressing wellness issues in law, explained why having trigger warnings in place for excessive working hours for lawyers is not a good idea.

What is a trigger warning, and do we need them?

Trigger warnings, originating in the early days of the internet, were initially intended to assist readers in preparing for or avoiding material likely to evoke traumatic memories, explained Vlahos, who is a commissioner for the IBA Professional Wellbeing Commission, chief executive and founder of Wellceum, and senior lecturer for the Australian College of Applied Professions.

She also sits on the board of the Minds Count Foundation, alongside the editor of this publication.

“Their scope has expanded beyond traditional trauma to encompass a wide range of experiences, including those of historically marginalised groups. The use of the word in this context, however, suggests that workplaces/firms would benefit from implementing safety intervention alerts or ‘triggers’ in the event a worker has exceeded a certain number of ‘healthy’ working hours,” she said.

Douglas, the founder and managing principal of FCW Lawyers (which has offices in Sydney and Melbourne), agreed – noting that trigger warnings have a special and unique role.

“It identifies an immediate subject that could cause significant distress, even vicarious trauma, to a viewer, listener or reader so they can decide, will they proceed. These risks, the need for an appropriate risk assessment process and controls are highlighted by recent cases like Kozarov v State of Victoria and the Court Services prosecution in 2023,” Douglas said.

“The cases explicitly point to the risks of psychological injury through the viewing, listening, reading, and sharing of traumatic material. A trigger warning is a control to prevent exposure and give a person notice so they can decide what action they will take.”

“Trivialising ‘trigger warnings’ in a discussion of workloads is unhelpful and dilutes the currency of this immediate high-risk control.”

Such looseness of expression would be dangerous, Douglas hypothesised.

The idea of trigger warnings around workloads, he went on, is “dangerous hyperbole”.

“It is the type of attention-grabbing sound bites that sounds thoughtful, but really, it is just a grab for attention. In this case, it does not help the thinking around psychological hazard management; it harms it,” he said.

“The size of the workload sending a trigger warning sounds good. But it attaches a lay meaning to a technical phrase that is misleading and ultimately degrades the urgent and critical nature of that phrase.”

“You may feel this is an overreaction, but someone’s immediate health needs matter. And it matters to me. I want them safe and empowered.”

What is needed instead?

According to Vlahos, while internal trigger warnings may signal a reactive response to potential overwork, the focus should be on prevention rather than merely reaction.

“Effective management of health and safety concerns in the workplace necessitates proactive engagement from managers and supervisors. Ongoing consultation with employees and adherence to organisational policies and procedures for managing health and safety risks are paramount. Cultivating a workplace culture that prioritises psychological health involves monitoring workload levels and ensuring tasks align with employees’ skills and capabilities,” she said.

“Perhaps a more data-driven and involved approach would be to implement a pulse survey, which would provide real-time insights into the thoughts and feelings of your workforce, helping you identify areas of concern and take action to support your team.”

Pulse surveys, Vlahos pointed out, can provide a safe and confidential platform for individuals to express their thoughts, concerns, and suggestions without the fear of judgement or repercussions, as well as allow organisations to gather real-time data on the state of their team’s mental health issues, instead of relying on guesswork or assumptions.

Moreover, such surveys can measure the effectiveness of mental health initiatives and interventions and identify patterns and trends, she said.

“In the context of early legal careers, the issue of work hours takes on heightened significance. High Court Justice Jayne Jagot, speaking at the Minds Count Lecture in 2023, underscored the imperative of addressing this issue, given its profound impact on professionals’ wellbeing,” Vlahos said.

“The prevailing emphasis on billable hours often overlooks invaluable contributions beyond mere metrics, perpetuating a culture of overwork and exploitation among junior staff.”

“To navigate these challenges, the legal profession must prioritise equitable treatment and cultivate a supportive environment that values the holistic wellbeing of all practitioners.”

“This necessitates a concerted effort to rectify systemic imbalances and cultivate a culture that champions mental health and safety. By acknowledging these issues and implementing proactive measures, organisations can create healthier and more sustainable work environments conducive to long-term success and fulfilment.”

The art of management, Douglas concluded, is reflection before action: “Not the suggestion of a trigger warning when it is too late.”

“Controls in the psychological hazards around workplace design are front end and multidimensional: not binary like physical hazards. The whole purpose of the positive duties in WHS jurisdictions is to ensure the relevant hazards are thought through, and the workload delegation, role clarity, certainty and capability assessment are undertaken before delegation.”

“It is too late after the delegation has happened and you seek to intervene when the damage is done.”

This article was originally featured in HR Leader's sister brand, Lawyers Weekly.